R v JU [2012] QCA 230

Judgment (60 paragraphs)

[1]

Director of Public Prosecutions (Queensland) for the respondent

[2]

[1] HOLMES JA: I agree with the reasons of White JA and the order she proposes.

[3]

[2] WHITE JA: On 28 April 2011 the applicant pleaded guilty to one count of indecent treatment of a child under the age of 16 with the aggravating circumstance that she was under his care; one count of maintaining a sexual relationship with a child under the age of 16; and one count of incest. Sentence was adjourned to facilitate the preparation of a pre-sentence report and bail was extended without objection.

[4]

[3] On 24 June 2011 the applicant was sentenced in the District Court at Ipswich as follows:

[5]

Count 1 (indecent treatment) - twelve months imprisonment;

[6]

Count 2 (maintaining) - eight years imprisonment; and

[7]

All of those sentences were to be served concurrently. His Honour specifically made no parole eligibility date. The prosecution entered a nolle prosequi with respect to count three - another count of incest.

[8]

[4] Before this court the applicant appeared on his own behalf. He sought a parole eligibility date after serving between two and a half and three years of his eight year sentence. By that submission and the ground of appeal appearing in his application:

[9]

"The learned Sentencing Judge erred in not fixing a parole eligibility date"[1]

[10]

it may be taken that the applicant contends that the sentence imposed was manifestly excessive rather than identifying any particular error in the sentencing judge's approach to the sentence.

[11]

[5] The applicant was born in December 1968 and was aged between 32 and 38 when the offences were committed and 42 at sentence. The complainant was born in February 1989. She was aged:

[12]

• between 14 and 16 during the maintaining period; and

[13]

• between 16 and 18 years when the count of incest was committed.

[14]

[6] The complainant's mother (who had other daughters) commenced a relationship with the applicant in 2001. Three weeks later the applicant moved into the house with the complainant, her mother and siblings. At some unspecified time, but by 2003, the complainant's mother and the applicant had married.

[15]

[8] Sentence proceeded on a schedule of facts. The schedule of facts identified the relevant misconduct by reference to the addresses where the family was then living. In these reasons it is unnecessary to make reference to those particular places.

[16]

[9] Count one (indecent treatment) was specified as on a date unknown between 16 February 2001 and 17 February 2002. The schedule of facts identified the occasion as on a date prior to the complainant's school formal (she was in grade seven) in early December 2001. The complainant's bedroom was downstairs. The rest of the family slept upstairs. She awoke in the early hours of the morning and went upstairs to sleep with her siblings. While she was upstairs she heard intimate noises coming from her mother's and the applicant's room. When they ceased she returned to her room.

[17]

[10] After returning to her room she heard her mother leave the house and shortly afterwards the applicant came into her room. He asked if he could lie in the bed with her and she agreed. While in the bed he placed his hand under her clothing and began fondling her breast. He then moved his hand down her body causing her to sit up so that he would stop. After she sat up and got out of bed she told the applicant that she was no longer tired and went to play pool. He followed her and the two played pool until dawn. The prosecutor informed the sentencing court that the complainant had told her mother about this episode but nothing was done.

[18]

[11] The family moved to a different house in 2003 after the complainant had started grade nine. The mother became addicted to gambling and would frequent the Treasury Casino in Brisbane approximately twice a week, leaving at 8.00 pm. When she left she would leave her children in the care of the applicant. The applicant, who was suffering from Type 1 diabetes, was quite ill at that time. The applicant raised concerns with the complainant's mother about being alone when she was out. They decided that the complainant would sleep in the same bed with the applicant whilst the mother was absent.

[19]

"Almost immediately after the complainant started spending nights in bed with the defendant he began touching her indecently. The defendant would touch the complainant on her breasts and on the outside of her vagina, under her clothing. The offending conduct occurred every night the complainant would stay in the same bed as the defendant and on occasion the defendant would kiss the complainant using his tongue.

[20]

A "few weeks" after the defendant started offending he procured the complainant to masturbate him on a regular basis, sometimes until he ejaculated. The defendant would also perform oral sex on the complainant and insert his finger/s into her vagina. This offending occurred "most nights."

[21]

The offending progressed to the defendant climbing on top of the complainant, removing his penis from his boxer shorts and simulating sex by rubbing his erect penis against her vagina. This act would result in the defendant ejaculating either on the complainant or the bed where the complainant slept." [2]

[22]

Approximately six months after this offending commenced:

[23]

"...the defendant began touching the complainant as "usual" however the defendant then inserted his penis into her vagina. Penetration occurred for approximately ten (10) minutes until he ejaculated inside the complainant. The defendant never used protection. Penetration then continued throughout the offending period.

[24]

Throughout the period indicted the offending occurred approximately two (2) to three (3) times per week."[3]

[25]

[13] The single count of incest was charged as occurring on a date unknown between 16 February 2005 and 25 July 2007. The schedule of facts stated that the complainant left school at the end of 2005 when she was 16 and by that time her mother was attending the casino every night. Sexual intercourse frequently occurred throughout that period. After the complainant turned 16 the applicant told her that he loved her and while they were in public he would "try to act like [they were] a couple".[4]

[26]

[14] The complainant started a relationship with a boyfriend and told the applicant that their sexual relationship had to cease which it did. In mid-2007 the applicant told the complainant's mother that she and the applicant had been "sleeping together" which was confirmed by the complainant. It seems that although police were informed nothing eventuated immediately. On 15 November 2009 the complainant provided a statement to police. After a pretext telephone conversation between the complainant's mother and the applicant he made admissions to having sexual intercourse with the complainant on a number of occasions. He stated that it began when she was approximately 16 and a half. He denied the offending in counts one and two.

[27]

[15] On 20 December 2009 the applicant participated in a record of interview with police. He denied the subject matter of counts one and two but again made admissions of sexual activity after the complainant had turned 16.

[28]

[16] Initially the applicant had been charged with offences of indecent treatment, maintaining, rape and unlawful carnal knowledge. There had been a committal proceeding on those charges and the complainant had been extensively cross-examined. On the morning of the trial, on 28 April 2011, the prosecutor presented a new indictment omitting a number of those charges and charging two counts of incest for the first time. The applicant pleaded guilty. The prosecutor below conceded that while the pleas of guilty were not early, they were timely. It would seem that the applicant was under a misunderstanding about the ambit of incest which, under s 222 of the Criminal Code, extended the range of lineal relationships in s 222(1)(a) by subsection (5) to a step relationship (which also includes a de facto relationship in subsection (6)). Once the count of incest was added in respect of which the applicant had made admissions, defending the maintaining count would have been extremely difficult.

[29]

[17] The failure of any action following disclosure to her mother of the indecent treatment conduct was offered as the explanation for saying nothing about the ensuing conduct.

[30]

[18] The sentencing judge noted that in her victim impact statement the complainant wrote that she was "scared that if I told him to stop or told anyone what was happening, he would hurt me, or someone I cared about. I was also fearful of becoming impregnated."[5] There was, in fact, no allegation of any threats or violence revealed on the material before the court. Accordingly, the complainant's conclusion that she was concerned for her own safety and that of people close to her could rightly not be considered as of significance on sentence.

[31]

[19] Mr Peter Perros, a psychologist, who prepared a pre-sentence report, wrote that the consultation occurred in the presence of both the applicant and his wife. Mr Perros noted that he was not provided with any material other than solicitor's instructions and relied upon the self-reporting of the applicant. The applicant was not frank about the extent of the offending sexual conduct.

[32]

[20] The applicant told Mr Perros that he used to "play-wrestle" with his step-daughters while relaxing at home. This, he said, took his mind off his health and business worries. He told Mr Perros that during one play-wrestling activity:

[33]

"[The complainant] ... grabbed me on the penis outside of my shorts, then she put her hand down the front of my shorts, then we ended up having sex ... I sorta thought all over the place."[6]

[34]

The applicant admitted to Mr Perros being flattered at the interest shown in him by the complainant. He said: "I did it because she was sixteen and a half and not a blood relative..."[7]

[35]

[21] The applicant's diabetes diagnosed in 1998 escalated and resulted in his inability to operate his business and led to increasing stays in hospital to stabilise his blood sugar levels. By 2007 he had what were described as "crippling" debts and lost his business. Thereafter he attempted suicide. He had been on a disability support pension since 2001. Mr Perros noted that the applicant's depression deepened after he was formally charged with these offences. His wife supported him. Mr Perros reported that he could find no evidence of paedophilic tendencies. Mr Perros opined that the applicant posed "a very low risk of re-offending, and a very low threat to children in the greater community".[8] He noted that the applicant would need to stay on antidepressant medication for the foreseeable future and would need monitoring about his mood disorder should it re-emerge.

[36]

[22] The applicant's general practitioner, Dr Ruban Ratnam, provided a brief report in which he noted that the applicant's diabetes required close monitoring and poor control would contribute to the well-known complications associated with Type 1 diabetes. He noted the applicant's history of attempted suicide and depression.

[37]

[23] The sentencing judge was referred to three comparable authorities: R v KN[9],

[38]

R v SAU[10] and R v CAM.[11] Relying on those authorities the prosecutor contended for a head sentence of seven to eight years imprisonment to reflect the mitigating features with no lower parole eligibility date than the statutory period. Defence counsel agreed with the range proposed by the prosecutor but submitted that the mitigating features of no threats of violence or actual violence, the cessation of the relationship once the complainant had a boyfriend, and the applicant's previous good working history and no convictions dictated a parole eligibility after serving two years. No emphasis was placed on the applicant's poor health and there was no submission at sentence or on the application hearing that this was a factor which would add to the applicant's punishment by making his imprisonment harder than for a person not so burdened.

[39]

[24] In KN[12] that offender pleaded guilty to one count of maintaining a sexual relationship with a child for which he was sentenced to eight years imprisonment; seven counts of incest, for which he was sentenced to four years imprisonment on each; and two counts of indecent dealing with a child under the age of 12 years for which he was sentenced to two years imprisonment on each. No recommendation for release on parole outside the legislative scheme was made and it was this which that offender contended made the sentence excessive. The complainant was the applicant's step-daughter. When she was aged six her mother came to Australia from the Philippines and married the applicant. He was 57 when sentenced. The first offending occurred when the complainant was approximately nine. This conduct involved the offender touching her on her breast and vagina and masturbating himself against her vagina area. He secured her silence by suggesting she would suffer consequences from her mother if she complained. The first act of intercourse occurred shortly before the child's twelfth birthday and thereafter on a regular basis. This was possible because the mother was often absent from home. There were a number of uncharged acts of intercourse which formed part of the particulars of the maintaining count. The judgment does not state if the intercourse was protected. That offender had no prior convictions and was accepted as otherwise being a productive, hardworking and law abiding member of the community. The range suggested to that sentencing judge was eight to 12 years.

[40]

[25] The factors which it was contended made a recommendation for early release after serving two and a half years, which were not adequately reflected in the sentence imposed, were the lack of injury to the complainant, no suggestion of paedophilia, genuine remorse, raising a family from a previous marriage and reduced prospects of employment without early release. Those matters had been taken into account by the sentencing judge. The court referred to a number of comparable sentences which it is not fruitful to examine here. Jones J, with whom Jerrard JA and the President agreed, commented that the sentence had been moderated sufficiently in the head sentence and it was already "at the lower end of the discretionary range".[13] Although the President agreed, her Honour added that had a recommendation for eligibility for release on parole been made after serving three years it would still have been within range. Reflecting that there is no "correct" sentence, Jerrard JA commented that higher head sentence could have been justified with a recommendation that the offender be considered for release on parole at a stage earlier than half way through that longer head sentence. There are many similarities with the present case although the offending commenced at an earlier age in KN and intimations that her mother would visit consequences on the child if she told of the offending conduct are absent here.

[41]

[26] SAU[14] concerned an offender charged with one count of maintaining over a two year period with the circumstance of aggravation that the maintaining involved incestuous carnal knowledge. He was sentenced to eight years imprisonment with a recommendation for parole after three years. The complainant was 14 years old when the offending began and 16 shortly after its end date. The offender was her natural father and aged 47 at sentence. His conduct included showing his daughter pornographic films; touching her vaginal area and masturbating her and himself; using a vibrator on her; making her perform fellatio on him and ultimately engaging in regular, penetrative intercourse over a period of about 12 months. The complainant disclosed to her mother about two years after its cessation what had happened. In the ensuing police investigation the offender initially denied any wrong-doing but eventually acknowledged the truth of most of what the complainant said. Notwithstanding that admission, the complainant was required to give evidence at committal and the matter was sent to trial. The offender had successfully had his admission of guilt excluded at the trial but this court ruled, on an Attorney-General's reference, that the statements were not inadmissible and the matter was returned to the District Court. On the day before trial the applicant indicated that he would plead guilty to a new indictment which narrowed the dates of the allegations and admitted a further count of incest.

[42]

[27] The offender had a very minor, irrelevant criminal history some decades previously. The victim impact statement showed that the complainant had been ostracised by her own family. The offender had good antecedents; had made a plea of guilty which was an indication of remorse, although Holmes JA, with whom the Chief Justice and Mackenzie J agreed, commented that the attempt to withdraw the admission did not suggest any significant remorse. There was no physical violence. The offender had, himself, desisted from intercourse with the complainant prior to complaint being made. After discussing comparable decisions Holmes JA concluded that the head sentence, given the nature and extent of the offending, was "not out of proportion to those imposed in the other matters cited".[15]

[43]

[28] CAM[16] was a more serious example of maintaining and has features of considerable dissimilarity to the present. That offender pleaded guilty to maintaining a sexual relationship over four years when the complainant was between 12 and 16 years for which he was sentenced to eight years imprisonment. The offender's wife had pleaded guilty to a similar charge covering a lesser period in which she aided her husband who was the complainant's step-father (from the age of four) in having intercourse with her daughter to the end that she should conceive a child to circumvent a genetic disability. As related in the Chief Justice's reasons,[17] with which Muir JA and Atkinson J agreed, the offender masturbated in her presence; touched her breasts; licked her vagina; and engaged in digital and penile penetration of her vagina. The penile penetration commenced when the complainant was 12 or 13 years old and occurred three to four times over the first three and a half years of the relationship but in the final three to four months, on numerous occasions. This was after the offender had reached "an agreement" with the complainant that she should attempt to conceive a child by him. The offender was aged between 29 and 33 years during the period of the offending. He was said to have a prior criminal history but not for offences of significance in the current context.

[44]

[29] In setting the head sentence at eight years, the sentencing judge, as mentioned by the Chief Justice, said that he had taken into account the mitigating features of the early plea, the co-operation, that the complainant had not been required for cross-examination and a psychological assessment of that offender. The Chief Justice described the conduct as a very bad example of the maintaining offence; an analysis of the cases demonstrated that those involving a head sentence of eight years with a parole recommendation after three years were cases where the unlawful sexual activity was less and did not have the aggravating feature of the specific intention to render the complainant pregnant. The sentence was not manifestly excessive. Atkinson J referred to the analysis of the authorities by Jerrard JA in R v SAG[18] which is regularly referred to for the useful checklist of aggravating and mitigating circumstances in these sorts of cases but need not be further described.

[45]

[30] Although he was referring to manslaughter sentences, Keane JA (as his Honour then was) observed in R v Dwyer:[19]

[46]

"An approach which seeks to grade the criminality involved in such cases by a close comparison of aggravating and mitigating factors, as if there is only one correct sentence, is to be deprecated as involving the illusion of a degree of precision which is both unattainable, and, in truth, alien to the sentencing process."[20]

[47]

That comment is applicable to cases of sexual offending where some features tend to be constant and others unusual. Nonetheless, it is important where facts and circumstances may be said to be reasonably comparable, that sentences do not demonstrate any great disparity. Here there was clearly a betrayal of trust by the step-father who employed his disability, even if initially unintentionally, as a means of access to the complainant. Another feature was the escalation in the offending leading to regular, unprotected sexual intercourse with the real risk of pregnancy. The corruption of the complainant was such that she had been conditioned by the applicant to be compliant. The damage to the child's personal development must have been significant. While the plea of guilty needed to be recognised, it represented acknowledgement by the applicant of a very likely outcome if there had been a trial. The applicant exposed the complainant to lengthy examination at committal, suggesting no real remorse. His account to Mr Perros minimised his predatory conduct and placed some initiating blame on the complainant.

[48]

[31] There was no requirement, when those facts are considered and previous sentencing decisions borne in mind, to modify the penalty further than imposing a head sentence of eight years by making a parole eligibility date earlier than the half way mark. Section 160D of the Penalties and Sentences Act 1992 provides:

[49]

"(1) This section applies if the offender's period of imprisonment includes a term of imprisonment for a serious violent offence or a sexual offence.

[50]